Can a Florida Probate Court “Correct” a Mistake in a Trust?
Florida residents commonly create trusts as part of their estate plan in order to distribute their assets upon death without the need for a lengthy probate process. Unfortunately, trusts are not always successful in avoiding disputes among family members, especially when there may be problems with how the trust was created or funded. If you find yourself in such a position, the Tampa trust litigation attorneys at Bleakley Bavol Denman & Grace can advise you of your rights and represent you in any formal probate proceedings.
Husband’s Failure to Properly Fund New Trust Undermines Wife’s Claim
A recent decision from the Florida Second District Court of Appeal, McGee v. McGee, illustrates one potential legal problem that can arise with revocable trusts–the settlor’s failure to actually fund their trust. In this case, Robert McGee created a revocable trust in 2014. McGee funded the trust with his real estate and bank accounts. Upon his death, the trust directed McGee’s successor trustee to distribute these assets to numerous beneficiaries, including McGee’s wife and daughter.
Seven years later, in 2021, McGee decided to create a new trust. McGee used a different estate planning attorney than he did in 2014. McGee did not inform his new lawyer about his 2014 trust. So the lawyer proceeded to draft a completely new trust, which McGee intended to include all of the same property as his 2014 trust. The main difference between the two trusts was that the 2021 trust left all of the trust property to his wife upon his death.
For some reason, McGee never actually transferred any of the property from his 2014 trust to 2021 trust. This was not discovered until after McGee died. His widow then filed a petition with a Florida probate court to “reform” the 2021 trust. Essentially, she wanted the court to declare the 2021 trust a “restatement” of his 2014 trust, allowing her to receive all of the trust property as her husband directed in the 2021 trust.
While the probate court granted the widow’s petition, the Second District reversed. It explained that while Florida law does allow a probate court to “reform” a trust to “to conform the terms to the settlor’s intent” when there has been a “mistake of factor or law,” that was not the case here. The written terms of the 2021 trust accurately reflected McGee’s intentions. The problem was that he simply forgot to fund the trust. While McGee’s 2021 estate planning attorney lawyer testified that he would have advised his client to simply restate the 2014 trust had he known about it–since then McGee would not have had to re-title any assets–the Second District said the attorney’s “post hoc opinion” was not evidence of McGee’s actual intentions.
Contact a Tampa Trust Litigation Attorney Today
If you are a trustee or trust beneficiary involved in a legal dispute, it is important to seek advice from a qualified lawyer. The Tampa trust litigation attorneys at Bleakley Bavol Denman & Grace can represent you in asserting or defending your interests. Contact us today at (813) 221-3759 to schedule a consultation.
Source:
scholar.google.com/scholar_case?case=10163885463428945699
